Because we are Utah lawyers, we are often asked questions. We love answering questions. Today we were asked about trusts. Here is some information that should be useful to you. An irrevocable trust is an agreement allowing property to be held by one party for the benefit of another, stipulating that that it cannot be readily revoked, altered, or amended. It is commonly used for asset protection and estate planning. A trust is a legal tool that consists of three parties:

A Settlorwho has the trust created.

A Trusteewho manages the trust.

One or more Beneficiarieswho receive the benefits of the trust.

You will also hear a Settlor also referred to as a Grantor or Trustor. A trust can also have multiple Settlors and/or Trustees. Then next question we answer is about revocable vs. irrevocable trusts, and how they compare.

Revocable vs. Irrevocable Trusts

A revocable trust, commonly a revocable living trust, is an estate planning tool that a settlor can change at any time. So, if your needs change you can make amendments freely without the interaction of a third-party.

So, why doesn’t everybody set up a trust that is revocable as opposed to an irrevocable trust? There are several reasons.

A revocable living trust is part of your own estate for asset protection purposes. As such, it offers no asset protectionfrom creditors or those who seek to sue you.

It also offers no segregation of assets in order to qualify for supportsuch as Medicaid or disability assistance.

Plus, upon your death, such a trust is also yours for state and federal estate tax

Why Irrevocable?

The primary reason people use irrevocable trusts to protect assets from lawsuits. Legal theory commonly allows a creditor to step into the shoes of the debtor. It allows the creditor do what he or she could do. For example, let’s say the settlor of a trust could freely change the beneficiary. The one who sued the settlor could step into his or her shoes and change the beneficiary to himself. If the trust allowed the settlor to independently spend trust assets on himself, the creditor could do the same.

Plus, some people use irrevocable trusts to make sure that others carry out their wishes when they are no longer around. This is common in second marriages where a spouse wants to make sure that children from the first marriage get at least some of the assets.

This article will primarily focus on the use of an irrevocable trust to protect assets from lawsuits, judgments and creditors. It will also touch on its role as an estate planning tool.

I Can’t Ever Change It?

It’s not quite like that, as there are often ways to make changes. It depends on how the trust is drafted. But if the purpose is asset protection, the changes often require the approval of a third-party, such as the trustee. Most trusts that protect assets are discretionary trusts. For example, if you decide to cut out a beneficiary or add a new one, simply ask the trustee. The trustee, at his, her or it’s (in the case of a corporate trustee) discretion can do so.

The trustee has discretion to decide whether or not the act would be in the best interest of the beneficiaries of the trust. They will see if it complies with the settlor’s intent, the overall purpose of the trust, and if doing so would or would not put trust assets in harm’s way.

To say it another way, if you could change it directly, the judge could force you to change the beneficiary to your legal enemies. So, by making it irrevocable, you are more likely to get what you want: the use of the trust assets. By requiring third-party intervention, it ties the judge’s hands from directly forcing you to make the changes against your will.

Changing Trustees

Don’t like the trustee? That’s okay. Simply fire him or her and hire another. You can change the trustee to anyone but yourself, a family member up or down the family trustee, an agent of yours, or a controlled employee. This is because courts consider these people your alter ego.

There are many types of irrevocable trust. Not all are for asset protection. There are trust to hold life insurance, for charitable purposes, to reduce the tax bite, and to care for those with special needs.

Conveyances & Transfers

Many people ask us about fraudulent conveyance / transfer and if they can get into trouble for moving assets into such a structure. The answer is, that fraudulent transfer is merely a civil matter, not a criminal one. It is not a crime. You cannot go to jail for it. There are not fines. The most that can happen is a judge can put assets back to where they were in the first place.

Allowances for the Unforeseen

Properly drafted trusts allow for wide range of future possibilities. For example, there are circumstances that would warrant a change of beneficiaries or trustees. Perhaps Mom and Dad unexpectedly have another child. One child exhibits evidence of long-term substance abuse. On child tragically perishes. The trustee retires. A well-drafted trust addresses all of these circumstances.

How Can It Be Irrevocable?

How can it be irrevocable if I really can change it? Notice the operative word, “I.” Irrevocable doesn’t necessarily mean nobody on the planet can change it. It doesn’t mean that you cannot suggest a change to someone else. It just means that certain people cannot, independently, without outside cooperation, change it. This is a good thing. Remember, if you could just change the beneficiary at a whim, the judge could force your whim to be your enemy at law.

Direct Control Can Hurt You

We all like control. But if you have complete power to change the trust, it could be used against you in a courtroom. That’s because a judge could force you to use that control and that would likely not be a good thing for you. He can force you to change the beneficiary to the person who sued you. That will allow your opponent to take all of the money held therein that is needed to satisfy their judgment. So, when you are lose a lawsuit, a revocable trust puts the judge, not you, in charge.

Why Choose an Irrevocable Trust?

A trust can be used to protect assets, but every trust is not equal to the next trust agreement, not by a long shot. A properly drafted irrevocable trust can protect assets from creditors. It can shield you from unnamed family members seeking addition as beneficiaries at the grantor’s death, or anyone else trying to take the grantor’s assets.

Free Initial Consultation with an Asset Protection Lawyer

When you need help with irrevocable or revocable trusts, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

The first thing a lawyer will do when considering a case against you on a contingent fee basis is to do an asset search. It’s the same thing an experienced litigant will do before handing over a hefty retainer. When he or she is attempting to discover the amount of money you possess, you need to remember that real estate deed copies and taxes paid on your property are available for public consumption. Anyone can access them. As an asset protection lawyer, one of the best tools we have is to remove your name from the public records database of real estate. Average income in your neighborhood – easily accessible. The car you hold title to in your name – easy to find. Where you work – a simple Internet search will usually do. How much you make and how much you’ve saved – this organization has repeatedly seen private investigators find out without much effort. The secret for how to protect your assets? Secure your wealth and prevent your asset information from going public by using the proper legal tools.

Land Trusts

With a land trust, you can hold title to your property in the name of the trust/trustee instead of your own name. This keeps your name from being associated with it in the public records. So, if someone unknown to you attempts to find out where you live, what property you own or what your real estate holdings are worth, finding that information becomes more difficult. This cloaking is provided by the land trust, which keeps your real property holdings private.

If you plan to establish land trusts for your personal residence or other real estate holdings, the good news is that they are available for use in all states, through common law, whether or not their statutes specifically address them. Remember, not every possible human act has been codified into law. Just like there are no known laws specifically authorizing the wearing of red shoes, what you will eat tonight, and who dates your daughter, not all state statutes specifically address the use of land trusts. They don’t need to. Unless there are laws to the contrary (of which there are none known in the United States), their use is permitted. This organization has established land trusts for use in all U.S. States.

Whereas the land trust is not an asset protection device, it is a privacy tool. Consider making the beneficiary of each land trust a separate limited liability company. For your personal residence, it usually makes most sense to name yourself as the beneficiary from a tax perspective. That way you can take advantage of the interest deduction, the allowable tax-free profits upon the sale of the home, etc.

A mortgage lender cannot forbid the transfer of a home into a land trust if the property is between one and four dwelling units and the owner remains as beneficiary of the trust (Garn St. Germain Depository Institutions Act of 1982). It would be wise to inform the insurance company that your properties are in land trusts.

Title Holding Trusts

Title holding trusts are similar to land trust in that they provide privacy of ownership of non-real estate assets. A title holding trust can be used to own vehicles privately. Since automobile ownership is a matter of public record, why own them in your name? If you own a newer 500 series Mercedes-Benz, a 600 series BMW, high-end Tesla or the like, a potential plaintiff or contingent fee attorney can easily find out. That could get his or her juices flowing that you are a deep-pocket.

Filing a lawsuit or taking a case on a contingent fee basis is a business decision. When they look for what you have and find no real estate and no cars, they’ll think twice about proceeding with case. Like land trusts, title holding trusts are not asset protection tools, they are privacy tools. This organization has seen hundreds of people keep cars that they would have otherwise lost by merely disguising their ownership in title holding trusts.

Living Trusts

For estate planning, there are few tools as good as the living trust. When you form a living trust, the trustee can be you or someone else. A living trust can act as the serving tray upon which your assets are served to your heirs up on your death. Your estate can avoid probate fees – the legal process of transferring assets from the deceased to the living. There are no such fees because the title to the property doesn’t need to change. It’s still in the trust. Your heirs simply become the new beneficiaries.

Instead of hearing, “First I’ll need a $10,000 retainer,” from an estate lawyer your heirs simply take the trust and a death certificate down to the bank and the money is theirs. Alternatively, you may have the trust drafted such that a trustee or trust company steps in and provides specified amounts at specified ages, regular support payments, payments for education, living expenses, etc. You can require your heirs to accomplish specified goals, such as certain levels of educational attainment in order to receive specified amounts. Your trust, your choice. This gives you control of how your assets are distributed long after your death.

Just like there are different motor vehicles for different uses, there are different trusts for different uses. There are powerful asset protection trusts that are available. However, a living trust is not an asset protection tool. It is an estate planning tool. Its main purpose is to give your heirs access to your assets when your days are done.

Corporations for Asset Protection

Corporations are useful for legally protecting yourself from business lawsuits. A corporation is considered a separate “person.” When that person is sued, the lawsuit is directed at it, not you. Thus, the corporation can act as a wall between you and your business to help protect your personal assets.

When you operate your business as a privately held corporation, then you can generally sell stock in your company free from public disclosure, protecting both the price paid and the name of the buyer. Just make sure you comply with the state and federal securities statutes. If it becomes a publicly traded company, more disclosures are required.

Most states require corporations to release the names of officers and directors. If you wish, you may elect to have nominee officers and directors who show up in “name only,” but you, as the voting shareholder, have the ultimate control. The names of stockholders typically stay out of the public records.

Corporations also allow for creative maneuvering of assets. For instance, if you are in the process of purchasing expensive equipment or vehicles that are already owned by a corporation, you can have the owner leave the property in the corporation, or place it in a new one, and then transfer the stock in the corporation to you. Make sure to get advice from a CPA on how a transaction of this nature is best handled from a tax perspective.

LLCs and Limited Partnerships (LPs)

For real estate assets, both limited liability companies (LLCs) and Limited Partnerships (LPs) work well for protection. LLC owners do not generally have liability for business debts or actions of employees. The benefit of an LLC is that the one(s) in charge, the managers, are shielded from business liability. With a limited partnership, on the other hand, the general partner (GP) is vulnerable. So, LLCs are now used almost exclusively instead of LPs.

Furthermore, as long as your LLC has been properly established, if you get sued in your personal life, there are legal provisions that can protect you from losing your membership in your LLC. They may get a judgment against you. But there are laws preventing them from taking your LLC or anything inside of it.

LLCs are also great tools to own passive investments. Unlike a corporation, which doesn’t usually work well from a tax perspective for owning a stock brokerage account, a LLCs default tax flow-through status allows you to take deductions and report gains as if you held the investments in your own name. However, unlike holding them in your own name the LLC offers favorable asset protection advantages which are discussed below,

It is usually a fast process to form an LLC in most states. Have it set up professionally because there is quite a bit to it, including drafting the articles, operating agreement, membership certificates, etc. You want to make sure that when you need it to protect you that it was set up right. If you missed something, you can believe that your opponent’s attorney will make a major issue of it in court and drive a truck right through it. So don’t scrimp. Have it set up by someone who does it every workday.

LP and LLC Background

Before the invention of LLCs, limited partnership were one of the most common tools used to own real estate. With either structure, your property can protected when you are sued personally. Why can someone not take your LP or LLC if you are sued? There is a reasoning behind this; mostly, fairness. To make sure the actions of one partner or member do not affect the actions of others, judgment creditors generally cannot take these entities, nor can they seize the property inside.

An LP used for asset protection purposes is typically structured as a family limited partnership, or FLP. An FLP is simply a limited partnership where the only partners are members of a family. (The same is true for members of a family LLC or FLLC.) Both an FLP and LP are set up with written agreements between at least two individuals. There are at least two types of partners, a general partner and a limited partner.

The general partner runs the business and is liable for debts of and lawsuits against the partnership. That is why a corporation or LLC is usually placed in that position.

The limited partner is a passive investor and does perform actions within the business. The limited partner is also not liable when the LP is sued. If a limited partner does start to manage the LP, however, he will be legally considered to be a general partner with all of the associated liabilities. So, if a limited partner wants to perform services for the LP, he or she will want to perform those services as an agent of the corporation or LLC that serves as the general partner. Contracts will be signed, for example, “Pat Smith, Manager of XYZ LLC, as general partner of ABC, LP.”

LLC & LP Owners

Whereas a one-person LLC is quite common, an LP requires at least two partners. A one-human LP, however, is possible where one partner is a natural person and the other is a legal person, such as a corporation or LLC. A man named John can hold, for example, a 95% interest as a limited partner, and the LLC he owns can hold a 5% interest as a general partner.

Profit sharing can occur between or among partners depending on their percentage of ownership. If the written limited partnership agreement allows it, the general partner can receive income over and above his, her or its proportional ownership interest.

Free Initial Consultation with an Asset Protection Lawyer

When you are ready to protect your assets, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

A trade secret is information that derives actual or potential value from not being known to the public and that is subject to reasonable efforts to maintain its secrecy. A trade secret can consist of formulas, patterns, compilations, programs, devices, methods, techniques, or processes. In fact, protection of trade secrets can cover everything from microchip design to religious practices. Some of the most famous examples of trade secrets include the formula for Coca-Cola and the algorithms behind Google’s search engine. However, information does not need to be famous for it to warrant trade secret protection. In fact, many valuable trade secrets are valuable precisely because the public does not know about them.

Every state allows an owner of a trade secret to seek legal relief when that trade secret has been disclosed or used without authorization. Moreover, nearly every state has adopted a version of the Uniform Trade Secret Act, which was originally published by the Uniform Law Commission in 1979. This act sets forth specific requirements and procedures that are unique to trade secret claims. As Utah attorneys, we’ve handled several of these cases.

Because trade secret cases are a particularized area of intellectual property law, attorneys who deal with trade secrets must be familiar with the procedural and substantive nuances of misappropriation claims. As an example, it is crucial to any misappropriation claim that the plaintiff, at an initial stage of the lawsuit, identifies the information claimed to have been misappropriated with reasonable particularity.

Prenuptial And Postnuptial Agreement Lawyer

Why Get A Prenup?

The idea of a prenuptial agreement rubs quite a few people the wrong way. “Why get married if you anticipate a potential failure?” they may ask. They may fear that a prenup will become a self-fulfilling prophecy of marital breakdown. Judgments such as these tend to overlook several realities that engaged people should face head-on as they prepare to marry:

About half the marriages in our society end in divorce. Entertaining the notion of a possible divorce someday can be realistic and even prudent.

Many people preparing to marry have financial and family complications to take into consideration: inherited assets, business interests, wide income differentials between spouses or children from previous marriages.

Divorce litigation dealing with division of assets can be very costly.

A prenuptial agreement can serve as a sort of “insurance policy” against potentially nasty legal maneuvers in the event of a marital breakup.

Who Needs A Prenup?

At our law firm, we often see clients who are considering prenuptial agreements falling into one of two categories:

Young people who have special financial circumstances such as gifting by older generations

Older people who have worked their whole lives and have substantial assets

Rest assured that if we help you craft a prenuptial agreement, we will do so fully hoping and expecting that you will never have to use it. On the other hand, we can predict from experience that you and your fiancé or fiancée will find peace of mind in putting down in writing the expectations that you both bring into the marriage with regard to each other’s assets.

Postnuptial agreements, on the other hand, have several common applications; namely:

As tools of reconciliation

As a way to keep business interests of spouses separate

As a way of spelling out how inheritances will be treated

Parental Rights For Unmarried Couples

In today’s society, it is not uncommon for unmarried people to have children together. When these couples split, there is usually not any sort of court order guiding how important decisions regarding the children will be handled.

Resolving Parenting Issues

Our attorneys have extensive experience establishing parental rights for unmarried couples. We work with our clients to obtain a clear understanding of their objectives, and then take the steps necessary to meet those goals. We help our clients obtain court orders that will cover critical parenting issues, including:

Child custody

Visitation

Child support

Medical decisions

Child care

Health care

Education

Religion

Why Paternity Is Important

In Utah, before custody or any other parental rights are given to a child’s father, paternity must be established. Paternity determines who is the legal father of a child. Many fathers are unaware that having their name on a child’s birth certificate is not enough to establish paternity.

Paternity is important because it not only gives the child’s father legal rights and responsibilities, but it also offers protections for the child. Once paternity is established, a child may be put on his or her father’s health insurance plan and is entitled to receive benefits, such as Social Security or veterans benefits. The child also has inheritance rights in the event that the father passes away.

Paternity is also important for the unmarried mother because it entitles her to receive child support from the child’s father.

Establishing Paternity

Paternity can be established in one of the three ways:

Voluntary Declaration of Paternity (VDP) — This is a legal acknowledgement of paternity that is often signed by the parents along with the birth certificate when the child is born.

Administrative Paternity Order — Paternity can also be established administratively through the Office of Recovery Services if a parent applies for child support and paternity is proven.

Judicial paternity — This is the most powerful way of establishing paternity because it is the form of paternity that enables the ORS to set up or enforce custody or parenting time arrangements with the child. To obtain a judicial order of paternity, either parent or both parents have the right to petition to court, establishing paternity.

As soon as paternity has been established, the unmarried parents will stand in the same position as divorcing couples.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Generally, Letters of Administration are documents issued by the Utah Probate’s Court authorizing a person (called ‘Administrator’) to manage or distribute the property of a deceased person who died intestate (without making a Will). A Utah probate lawyer will explain the function of these documents to you directly so it is clear.

Individuals can and should determine the distribution of their estate by preparing a Will which usually specifies an executor to carry out its directions. Where the decedent has left no Will, the Utah laws and procedures determine both to whom and by whom a decedent’s estate will be distributed. It is important that the deceased’s close family members protect their interests in the decedent’s estate including being appointed as an estate Administrator. Imagine a situation where a person dies without having prepared a Will and a distant relative is appointed as Administrator and the decedent’s house and all other assets are inherited by this relative whom the decedent disliked or had no contact with for many years. Moreover, it may turn out that a government official called the Public Administrator will be appointed by the Court to administer the estate. The Public Administrator and his attorney are required to be paid a fee which will diminish the funds going to the decedent’s family.

The estate laws determine the family member that have the right to be appointed as an Administrator of an Estate. The Probate’s Court Procedure Act (SCPA) has many section s dealing with Intestate Administration. Section 1001 of the SCPA provides the order of priority for the appointment of the Administrator.

When a person prepares a Last Will in which he nominates an executor, the intestacy law no longer control the selection of the estate fiduciary. It is apparent that a person should prepare a Will so that he can select the persons who are to be in charge of handling all estate affairs. This selection is usually a close relative or friend. The nominated executor must present the Will to the Court for his official appointment as Executor. An attorney may be helpful in this process.

Administration proceedings can be complex and involve many issues such as proof of kinship and a search for unknown heirs. Letters of Administration will need to be obtained which requires filing a petition and many other documents with the Court. The petition for Letters of Administration is filed in the Probate’s Court in the county where the decedent lived. For example, if the decedent lived in Manhattan, the papers are filed in the Utah County Probate’s Court which is located at 31 Chambers Street in Utah. Most of the Probate’s Courts in the various counties have the same requirements regarding the papers that must be filed such as the death certificate, petition, affidavit of kinship and affidavit of no-debts. However, experienced estate attorneys are aware that some of the Courts have their own particular requirements and forms. It is important to find out about these various estate filing specifics as soon as possible when preparing the filing papers.

Executor and Trustee

An Executor and Trustee and an Administrator are all what are generally known as fiduciaries. Fiduciaries have many duties and responsibilities. These obligations are set forth in statutes and by the courts which have developed standards of conduct to be followed by fiduciaries. A Utah estate planning lawyer can explain them in greater detail.

Executors and Trustees and Administrators are all generally accountable and responsible to the court and to the persons who are the beneficiaries for the assets which they administer. Such responsibilities involve duties of care so that assets are protected, obligations that prohibit self-dealing and a duty to account for the assets they collect and payments they make.

Sometimes there is confusion as to the difference between an Executor and Trustee. When a person executes a Last Will, he typically nominates an Executor and substitute or successor Executors. The job of the Executor is to follow and carry out the terms of the Will. Once the Will is admitted to probate, it becomes validated by the Court. Say for example, that the Will says that the decedent’s house is to be sold and that the proceeds from the sale are to be divided into three shares, the Will further states that two of the shares are to be given to two named estate beneficiaries, However, the third share is to be given to a Trustee to be held in trust pursuant to the trust terms that are set forth in the Will. This is called a testamentary trust. The Will typically names the Trustee. Once the executor pays the proceeds to the Trustee, the executor’s job is finished and the Trustee takes over and administers the trust assets according to the Will provisions. It is possible, and often occurs, that the person named as Executor also acts as the Trustee.

Executors and Trustees serve an important role in Estate Planning. They are essential in implementing and fulfilling the intent of the creator regarding the disposition of assets. They can also have a vital role in safeguarding the economic welfare of minor children and beneficiaries who suffer from disabilities. It is common that a Utah Estate Plan will include a Supplemental Needs Trust to benefit someone who is receiving governmental benefits such as Medicaid or social security disability. An attorney may be helpful in this process.

Free Consultation with a Probate Lawyer

When you need help with an estate or when a loved one has passed away, call Ascent Law for your free consultation (801) 676-5506. Our compassionate and experienced lawyers are here to help you.

A lawyer in Utah can tell you, divorce is a leading cause of asset distribution. Here we’re talking about the most protection one can establish when engaged in a divorce property battle. We are not merely talking about hiding assets. Many people who seek divorce asset protection do so when problems arise in the marriage or after divorce papers arrive. There are tools that can provide protection under this scenario. But it is best to act beforehand.

Under the best circumstances, transferring the ownership of your separate property, including your business and income, into an asset protection strategy prior to tying the knot more effectively guarantees the protection of your assets in divorce. Whether you do so beforehand or after the fact, having a divorce asset protection plan in place strengthens your hand in the separate vs. marital property battle.

Discussed in a Forbes article are methods used to protect your business against a future divorce. Establishing a personal asset protection strategy is one of the most important techniques they discuss. The prenuptial agreement is another. It also stresses the need to take protective measures well in advance of the need, or likelihood of the need for asset protection.

Divorce: A Top Wealth Buster

Divorce is one of the top wealth busters an individual can face. Ideally, set up an asset protection before marriage. Yes, you can set up an asset protection strategy to protect your finances from divorce when troubles arrive. However, planning measures taken years in advance offer the most protection when placed under the legal microscope.

Statistically, a divorce is more likely to happen than a major car accident and are much more costly in terms of legal fees and property separation. Imagine having a divorce insurance policy where future income, personal assets and business never make into a property battle. That’s what a divorce asset protection plan provides.

Nuptial Agreements

Prenuptial and postnuptial agreements are not watertight. Not all states recognize them. They are often challenged. So they offer very little certainty. Certainty, in this case, comes in the form of a personal asset protection strategy. By setting up the proper legal tools and transferring property into them, one can effectively shield assets from future liability and divorce.

Whereas it is best to have an asset protection plan in place before your spouse serves you with divorce papers, there are strategies that are effective at any stage in the game. Domestic asset protection strategies are usually not very effective.

Types of Business Entities

The most common form of business entities are corporations and LLCs. Business owners use these entities for multiple advantages. There are tax benefits. As stated previously, they offer protection from lawsuits against the business. Statutes usually don’t allow attorneys, medical practitioners, CPAs, etc. to form standard entities. Instead, they need to form professional corporations, professional LLCs or create a limited liability partnerships. Typically, the law requires that licensed members of a particular profession are the owners these entities.

Corporations

Corporations can offer outstanding protection for shareholders, officers and directors. Thus, these entities work well for businesses with multiple owners and employees. There are extra tax deductions, such as those for healthcare plans and medical expenses. Accountants typically recommend against using corporations to own real property. There are detrimental tax consequences compared to LLCs. Plus, creditor law considers the shares as personal assets. Creditors can seize them and sell the stock to satisfy judgments.

Limited Liability Companies (LLCs)

A Limited Liability Company also offers personal liability protection from business transactions. It shields the managers and members (i.e. owners) from liability. The LLC also has fewer business formalities than does the corporation. By default, LLCs are pass-through tax entities. Many experts highly recommend LLCs for owning real estate. This is due to the fact that provisions prevent creditors from seizing LLC interest to satisfy a judgment. Should someone sue a company member the company and the assets inside are secure. Thus, property and other business assets held in an LLC is protected from personal liability of the managers and members.

Free Consultation with a Lawyer

When you need to protect your assets or go through a divorce, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

A fraudulent conveyance is a civil (not a criminal) matter wherein assets are transferred with the intent to hinder or delay creditors. Whereas it is ideal put an asset protection plan into place before trouble arises, in reality, many people do not realize the need until it is too late. So, prepare for a lawsuit before it strikes if you can. However, if it is too late and you have not yet done so, don’t worry. There are ways to protect yourself after the fact.

Put Up a Fight

Fraudulent conveyance is also known as fraudulent transfer. Some people think that you find yourself dealing with a creditor, it’s over. They think that there is not a whole lot they can do to move assets protect them. Not true. If you can put up a fight, why not do it?

Strategies

There are a few strategies that you can employ late in the game. For example, offshore asset protection trusts take the assets outside of the local court’s jurisdiction. So even if your opponent jumps up and down and screams “fraudulent transfer,” your offshore trustee can lace his hands behind his head, lean back in his chair and look out at the palm trees wafting in the sea breeze. The reason is that your local courts do not have jurisdiction in his country.

The judge may tell you to ask the trustee to send trust funds to your legal opponent. If you make that request against your will, your trustee will support your true desires. They will invoke the duress clause and refuse to comply. You have done your part in doing what the judge has ordered. You asked the trustee to bring back the funds. The key is to make sure your trust is properly established. If it is, a judge would be hard-pressed to find you in contempt. That is because you are not refusing to comply. You simply do not have the ability to act firsthand.

Huge Barrier for Your Opponent

This leaves your opponent a very expensive and time-consuming option: To file a lawsuit offshore. Even if he does, he will find himself in an obstacle course. One that is built intentionally to make it unlikely for him to win. A pride of lions most often eat the weakest members of the herd. So, why let yourself be easy prey? Why not be the one that puts up the biggest fight?

Fraudulent Conveyance Vs. Preparation

This is not to say that you should engage in fraudulent conveyance. It is best that you do not. It is much better for you prepare for the near inevitable. That is, set up an asset protection plan before you need it. So, this seemingly obstinate dialogue intends to give an editorial angle on the subject. It is not encouraging you to participate in this practice. It is simply saying that those who have the philosophy “I’m not going down without a fight,” put the odds in their favor over those who easily cave in.

Free Initial Consultation with an Asset Protection Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

If you are considering a divorce, there are many things to take into consideration, such as the potential impact separation could have on your children and your financial well-being. If you decide to turn to a divorce mediator in Salt Lake City, you may be able to resolve any disputes with your spouse in a healthier manner while conserving time, energy and money. However, there are many divorce-related requirements in Utah that you may want to familiarize yourself with, such as waiting periods.

According to the Utah Courts, divorce decrees are not signed until 90 days has passed after the date divorce petitions are filed. I’ve seen it as a divorce lawyer. That said, you and your spouse could be able to have this waiting period waived, if you are able to prove that you are going through extraordinary circumstances. Once a motion is filed, the other spouse has two weeks to object by submitting a Memorandum Opposing Motion form.

With regard to the divorce process, you and your spouse may disagree on many issues, from creating a child support order to dividing marital property and how to handle custody matters. Although divorce is often challenging, mediation may prove beneficial and help both you and your marital partner move forward. Regardless of the decisions that you and your spouse make concerning divorce, it is essential to work for a positive outcome, which is particularly important if you have children.

Please keep in mind that this information was written for general informational purposes and is not to be interpreted as a substitute for legal counsel.

FACING YOUR FEARS ABOUT DIVORCE

The decision to file and finalize divorce is never easy. Even after couples grow apart and realize that the marriage has dissolved, they may wait years or even decades to file for divorce. Some will wait until the children move out or genuinely hope that things will turn around instead of facing the inevitable. If you are facing divorce, fear is normal. Remember that you are not alone and that most divorced or divorcing couples have had similar fears.

For couples in Salt Lake City, Utah, an experienced attorney can help you review the facts of your case, identify your concerns and protect your rights. Here are some common fears about divorce:

Losing custody and a relationship with children.

Splitting up a family into two households is never easy. Both parents and children will have a difficult time adjusting, but an experienced attorney can protect your custody rights and ensure that a visitation schedule meets your needs and the best interests of your children.

Cost.

Dividing income and creating two separate households after divorce can be expensive. Alimony and child support payments can also add up. An advocate can protect your financial interests during negotiation and settlement. Financial planning and adjusting your lifestyle will also allow give you the power to manage your transition.

Failure.

Many couples will put off divorce because of the fear of “failure.” In many situations, leaving a marriage is not only a last resort, but the only healthy option. Remember that divorce isn’t failure, it is admitting your needs and the problems in your marriage so that you can move on.

Losing friends and family.

It is likely that your social network may change after divorce. On the other hand, you can maintain shared friendships. Being open, honest, and respectful will prevent your friends and family from having to choose.

Being alone.

This is one of the most common fears, but it is not a good reason to stay in a bad marriage. Many also fear growing old alone, but this is a common fear, even for those who are married. Life will change after divorce, but for many divorcees, life will change in positive ways. Empowerment in your life can mean new opportunities, new friendships, relationships, and a future of possibilities.

Free Consultation with Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

A good, healthy marriage is based on trust. We all have secrets. But when those secrets affect your relationship, they can often come back to haunt you later. As a divorce lawyer, I’ve seen this happen before. Marriage is a partnership where both parties are making a commitment to share their life together.

DOES YOUR SPOUSE HAVE HIDDEN ASSETS?

And one of the biggest components is sharing your finances and assets. But when a marriage falls apart, many people resort to hiding many of the most valuable assets from their partners. Fortunately, there are ways to track down any hidden income and other assets.

DETERMINING THE DIVISION OF ASSETS

Divorce can often get complicated. One of the most complex issues is the division of assets. The first step is to consult with an experienced and knowledgeable divorce attorney
When determining the full financial inventory of each spouse, assets are separated into three different categories:

Marital Assets:These are assets acquired strictly during the marriage.

Commingled Assets:These are a mixture marital assets and separate property. The most common examples are retirement funds and bank accounts.

Separate Assets:These are assets that were acquired prior to the marriage or after a separation. They can also be any inheritance or gift.

ARE YOU THE “OUT SPOUSE”?

In many marriages, one spouse is often in charge of handling most of the financial decisions and bookkeeping responsibilities, whether it is filing taxes or balancing the checkbook. Divorce attorneys often refer to the spouse who does not participate in most of the financial decisions as the “out spouse”. In these instances, the out spouse generally does not have the same level of access to the couple’s financial situation. If you are the out spouse, the first step is to ask your partner to make copies of all marital financial records. A cooperative spouse can make the process much easier. Unfortunately, that is rarely the case–especially when there is tremendous acrimony in the fractured relationship. The good news is most financial records can be found online. If you are unsure of any accounts, contact any banks, mortgage companies, retirement plan advisors or any relevant financial institutions during your marriage.

A DIVORCE ATTORNEY CAN HELP WITH THE DISCOVERY PROCESS

If you have made the difficult decision to file for divorce in Utah, it is vital to know all of the assets acquired during your marriage. If you have any suspicion your spouse is hiding any assets, it is important to contact a Salt Lake City divorce attorney with a track record helping clients through the discovery process. The attorney can make requests of several important types of financial documentation from your spouse, including tax returns, loan applications, bank account records, financial statements and much more. By utilizing the discovery process, you spouse will also have to answer specific questions in writing. It is the most effective method to gain financial information from an uncooperative spouse.

WHY DIVORCE IS MORE DIFFICULT FOR MEN

Divorce can be a bitter struggle. Anytime a long-term relationship comes to an end, it can be devastating both emotionally and financially. When it comes to divorce, it is often said there are no winners. But there is definitely plenty to lose. But who stands to lose more–men or women? More often than not, the answer is men. The lazy argument is men generally make more money and have more to lose financially. But that is only part of the equation. There are some other overlooked factors many people do not take into consideration.

Here are some scary statistics. Did you know divorce can affect your health? According to a study conducted by the Journal of Men’s Health, divorced men are more likely to contract heart disease, high blood pressure and strokes than their married counterparts. They are also 39 percent more likely to commit suicide or engage in risky behavior. Although popular opinion suggests women tend to be more emotional, there is more scientific evidence that suggests it may be the opposite when it comes to divorce. Here are some reasons why.

THE LOST SENSE OF IDENTITY

Many men fall into the trap of letting marriage define who they are. When a marriage comes to an end, men often get a sense of losing their identity. For years, they have spent much of their lives with a partner to provide emotional support and sexual fulfillment. One solution is to work on rebuilding confidence by joining an organization or getting involved in a new activity. It not only allows men to branch out and meet new people, it also gives them the opportunity regaining a sense of fulfillment by accomplishing new and different goals.

PATERNAL INSTINCT IS CHALLENGED

For many men, the sense of family is the backbone of their relationship. It can be a difficult transition to go from being the head of a household to being completely out on your own. It is important for men to remain a major part in the lives of their children. Although women typically are awarded primary child custody, the bond between a father and their children can be very therapeutic.

MEN DO NOT GRIEVE PROPERLY

Divorce and death are two completely different things. However, both can cause a huge void that is seen as irreplaceable. Because men have a tendency to bottle up their emotions, it can lead to deeper feelings of depression. Psychological issues can often become powerful triggers for high blood pressure. Depression involves much more than just feeling depressed. It can also lead to physical issues, including pain and less physical activity leading to obesity and heart disease.

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Just as it takes time to build a life together in marriage, the process of dissolving that marriage can take time as well. Because we are divorce attorneys, we have seen it all. Often times, separating couples in Utah may be surprised and/or overwhelmed by factors such as property division and child custody arrangements.

INSURANCE POLICIES AND PROPERTY DIVISION

It’s very important to ensure that investments like insurance policies are accounted for at the time of divorce to help ensure savings are secured and both parties are held responsible for their contributions.

Medical/Disability/Long Term Coverage

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives individuals without their own medical insurance the option to remain on their partner’s plan during the divorce process. Typically, a person may be covered through COBRA for 36 months, which can give them the chance to obtain their own plan. And beyond deciding how to provide for each other’s health insurance needs, divorcing parents must also settle on who will cover the children’s medical expenses.

Similarly, figuring in disability insurance coverage can be helpful too. Not only do both parties need access to disability benefits in the event they become ill or injured after the divorce, but anyone anticipating spousal support should consider how it can be effected by their ex becoming disabled. Likewise, long term care coverage may be a wise investment for older individuals.

Liability Coverage

Many divorcing individuals find that their liability insurance premiums increase once they switch to single plans. Though, it’s crucial that people continue to maintain insurance on investments like the family car and house throughout divorce proceedings to ensure there is no lapse in coverage.

Life Insurance Policies

Many life insurance policies are considered long term investments, and are therefore included as assets when calculating divorce settlements. Furthermore, such policies can be used to safeguard alimony or child support payments if one spouses passes.

WHAT DOES COLLABORATIVE LAW ENTAIL?

If you are confronted by the prospect of divorce, it’s incredibly important to know the legal options and resources that are available to you and your family. Collaborative law is one approach to reaching a divorce settlement that is gaining increasing popularity here in Utah and beyond, as the process encourages dispute resolution without litigation.

As the Utah State Bar Association explains, the collaborative divorce process often begins when you and your legal counsel begin discussing your options for resolving your family law dispute. Depending on you and your family’s unique circumstances, and your relationship with your soon-to-be ex-spouse, your attorney might recommend collaborative divorce mediation. You may find collaborative divorce especially appealing if you are interested in coming to a fair and reasonable divorce settlement without engaging in more adversarial measures, such as court proceedings.

Once you and your spouse decide that collaborative divorce is right for you, you and your attorneys will agree to the terms of the collaborative process. Essentially, that means that all parties agree that both attorneys will withdraw from the case in the event that you and/or your spouse decide to exit the collaborative process in favor of litigation. Next, you and the other three parties involved in the collaborative process will engage in non-adversarial dispute resolution techniques to develop a comprehensive and reasonable divorce settlement.

Your attorney will likely work with your soon-to-be ex-spouse’s attorney to plan the negotiation sessions that you will attend, and set the tone for the meetings. Similarly, you and your husband or wife will be encouraged by both your attorneys to discuss your concerns openly, in order to reach an agreement that accounts for both of your best interests. Of course, the unique nature of every divorce case means that the collaborative process can proceed in different ways. Therefore, this information should in no way be considered legal advice.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

When looking at a revocable trust versus a will, the advantage of the former becomes clear when it comes to the issue of probate. You should always speak with a licensedestate lawyer before you make changes to your plan. A will becomes public record. It has to be registered in court of law. Then it has to be proven to be the legitimate record of a deceased person’s wishes. A probate can be a complex or simple matter. This will depend on the size of the estate, as well as the number of conflicting claimants – if any. A will cannot be executed while it is under probate. This means beneficiaries cannot enjoy the benefits of the assets until the process is complete.

In contrast, assets held in a trust at the time of a grantor’s death are deemed outside the probate process. As such, they pass directly to the trust beneficiaries. A probate can be an expensive and time-consuming process. With the right type of trust in place, your beneficiaries are protected from having to undergo a probate.

A revocable trust is a private document; unlike a will, which becomes a public document once it’s registered for probate. Thus, a revocable trust gives your beneficiaries a considerable measure of privacy when they likely need it the most.

What is an Irrevocable Trust?

The definition of an irrevocable trust is simple: once established, the one who created the conditions of an irrevocable trust cannot directly alter it. In can usually be changed, but the grantor or beneficiaries are not the ones who can change it directly. If it you could change it directly, without third party intervention, then a judge could order you to change the beneficiary. Then the new beneficiary of the trust would be person who just won a lawsuit against you. That is how an irrevocable trust provides asset protection. It can tie the judge’s hands from forcing you make changes that would release trust assets to your legal enemies.

To continue, the grantor also places ownership of the assets into the irrevocable trust. The trustee is in charge of the assets, as well as the management of the trust. Why would anyone transfer assets they have worked so hard for all their life into a trust? There are several reasons behind this, and three of them are given below. But first, a quick word on the unchangeable nature of an irrevocable trust’s conditions.

A grantor can maintain a modicum amount of control over the assets of an irrevocable trust through a careful wording of the trust deed. For example, a grantor can impose specific conditions that must be met before a benefit can be paid out. It could be by the time a beneficiary reaches a certain age or achieves a particular milestone. A grantor can also stipulate for income from the trust to be used solely for an explicit purpose. It could to pay for college, start a business, or for travel, and other such conditions. When the conditions are not met, no benefit will be disbursed to the named beneficiaries. A flexible wording of the trust deed allows the grantor to address unknowable future scenarios or changes in circumstances. This is one way a grantor can continue to ‘control’ an irrevocable trust without giving up its most potent features.

Why Use an Irrevocable Trust?

One of the main reasons people set up irrevocable trusts vs. revocable ones is to protect their assets from estate taxes. Once a grantor transfers assets to an irrevocable trust, he or she ceases to be the owner of the assets. Thus, these assets can no longer be taken into account when determining the value of a grantor’s estate. This makes perfect sense, since the grantor no longer owns the assets – the trust does.

An irrevocable trust can also have a strong asset protection benefit. A nuisance plaintiff, or even a grantor’s legitimate creditor, cannot touch the assets held in an irrevocable trust. Again, this is simply because these assets do not belong to the grantor anymore. By divesting themselves of asset ownership, grantors are able to protect their assets from legal claims – predatory or otherwise. It’s true that an aggressive claimant can sue a trust to distribute benefits to them rather than a debtor-grantor. But even here, a deliberate wording of the trust agreement can provide protection from such an attack.

Transferring assets to an irrevocable trust can help you qualify for certain government assistance programs with an asset limit. This would include long-term care assistance from Medicaid. Keep in mind however, that Medicaid currently has a five-year look back period. This means, assets that were transferred to a trust less than five years before a grantor applies for government assistance are not protected. In this case, you may be forced to spend them down in order to qualify for assistance. If you clear this five-year look back period, the assets in your irrevocable trust are protected. They can pass on to your beneficiaries rather being spent down in order for you to qualify for government assistance.

Asset Protection Benefits

The asset protection benefit of irrevocable trusts comes mainly from the separation of the grantor from his or her assets. Ironically, it is in giving up ownership of their assets that grantors are able to protect them the best. An irrevocable trust that has been properly established offers several benefits. Assets in an irrevocable trust are shielded from creditor claims, estate taxes and a Medicaid spend-down. A revocable trust allows a grantor to retain a fair amount of control over trust assets. This is an expedient way to avoid a probate battle. It also ensures a smooth transition to a successor trustee should a grantor suddenly become incapable of administering the trust. A revocable trust, however, does not have strong asset protection features. It remains part of the estate, and assets in such a trust can generally taken when the grantor is sued.

Free Consultation with a Trust Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.